[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

with that matter may be imputed to the organization for purposes of civil or criminal
liability.” Stanford’s complaint does not name any of these employees as involved in the
alleged discrimination. In fact, in an affidavit she states that the two lieutenants “had no
role in making any of the decisions that are the subject of my complaint of discrimination
and retaliation,” and Harvard does not refute this averment. All five employees were mere
witnesses to the events that occurred, not active participants.
We must still determine, however, whether any of the interviewed employees have
“managerial responsibility on behalf of the organization with regard to the subject of the
representation.” Although the two patrol officers and the dispatcher were subordinate to
Stanford and had no managerial authority, the two lieutenants exercised some supervisory
authority over Stanford. However, not all employees with some supervisory power over
their coworkers are deemed to have “managerial” responsibility in the sense intended by the
comment. “Supervision of a small group of workers would not constitute a managerial
position within a corporation.”
Even if the two lieutenants are deemed to have managerial responsibility, the
Massachusetts version of the comment adds the requirement that the managerial
responsibility be in “regard to the subject of the representation.” Thus, the comment
includes only those employees who have supervisory authority over the events at issue in the
litigation. There is no evidence in the record that the lieutenants’ managerial decisions were
a subject of the litigation. The affidavits of the two lieutenants indicate that they did not
complete any evaluations or offer any opinions of Stanford that Chief Riley considered in
reaching his decisions.
. . . Because we conclude that rule 4.2 did not prohibit MR&W from contacting and
interviewing the five HUPD employees, we vacate the order of the Superior Court judge
and remand the case for the entry of an order denying the defendant’s motion for
sanctions. . . .
Problems
14-12. Martyn & Fox has been representing a corporate client in a Securities and
Exchange Commission (SEC) investigation, a fact known to the SEC. One Saturday
morning, Fox gets a panicked telephone call from our client’s sales manager. The cause: this
morning, Justice Department lawyers visited at least ten brokers, two secretaries, and an
internal auditor employed by our client. What should Fox do?
14-13. Can Martyn & Fox send a memorandum to all our client’s corporate employees
directing them not to talk to anyone from the Justice Department?
14-14. The trial is a week away. Can Martyn visit with the other side’s expert witness?
How about a former officer of the party on the other side? What if the officer was
separately represented at her deposition?
14-15. Martyn & Fox’s client, an activist vegetarian group, thinks that a national chain
is using beef tallow in processing its French fries. They believe the only way to prove this is
to get someone hired to work at the national chain’s French fry processing center. They ask
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